Do we still need the CRTC?

The future of television consultation omits the big question.

Actor Kevin Spacey attends a screening of the Netflix series House of Cards earlier this month. The CRTC discussion of video streaming services such as Netflix focusses almost exclusively on new fees.

By:Michael GeistTechnology,Special to the Star, Published on Fri Feb 28 2014

Internet video-service regulation and the prospect of pick-and-pay channels headline the second phase of the Canadian Radio-television and Telecommunications Commission’s future of television consultation, which launched late last month. The “TalkTV” initiative is designed to make it easy for Canadians to participate, featuring six short scenarios followed by a limited number of choices for respondents.

While the consultation quickly attracted considerable participation — the commission said thousands of Canadians responded in the first week alone — its content raises serious concerns about future plans for CRTC regulation. Indeed, if the consultation is a signal of where the commission is headed, not only is the notion of true pick-and-pay channels dead and the much-disliked simultaneous substitution alive, but regulation of Internet video services may be just around the corner.

The Internet video discussion in the survey focuses almost exclusively on new regulatory fees for services such as Netflix. After asking respondents whether online services should be required to contribute to funding for Canadian content, provide closed-captioning, and adhere to regulated programming standards, the CRTC poses a series of follow-up questions that all involve additional costs.

Respondents are asked whether they would pay an extra 50 cents per month for Canadian-made programming (presumably the additional cost for a Canadian content fund) or a few cents each month for closed captioning. The commission also asks whether Canadians would pay $5 more each month for increased Internet usage costs. The CRTC floats the possibility that such usage would not count against monthly data caps, suggesting it may be willing to violate net neutrality principles as part of a new Internet regulatory regime.

The consultation delves into other controversial issues, but often offers a lopsided perspective. Signal substitution, the longstanding practice that swaps a U.S. feed with the Canadian equivalent (with Canadian commercials) when the same program is aired at the same time, was raised during an earlier part of the consultation as a policy ripe for reform. Once the issue is explained in the survey, respondents are offered just three choices: keep the policy unchanged, black out U.S. signals, or require Canadians to pay extra fees to compensate stations for lost revenues.

Similarly, the consultation asks whether Canadians would like access to more U.S. and international programming. The commission seemingly pre-judges the issue by framing the ramifications of new programming as increasing cable and satellite fees, creating lost Canadian jobs, or developing new channel packages with additional Canadian content to offset the foreign programming.

When asked about the apparently skewed approach during a recent Twitter chat, CRTC Chair Jean-Pierre Blais responded that the consultation was meant to be provocative. Few would object to a provocative approach that generates interest in broadcast policy. However, these provocations are entirely one-sided.

For government regulators, it is apparently provocative to ask about Internet regulation and the implementation of new fees that could almost double the effective cost of services such as Netflix. It is similarly provocative to equate more consumer choice with lost Canadian jobs or to propose compensation for Canadian television stations if simultaneous substitution is removed.

Yet the commission does not offer similarly provocative options such as the elimination of many broadcast regulations in order to create a level playing field with Internet services, or removing the requirement that Canadians purchase basic television services with all cable and satellite packages. It also does not provoke respondents with the possibility of new rules to eliminate simultaneous substitution by forcing Canadian broadcasters to adjust to a more competitive marketplace or to re-imagine the role of public broadcasting in Canada.

Given that the CRTC, rightly or wrongly, often attracts the ire of Canadians, the survey also avoids the biggest provocation of all — does Canada still need the CRTC? The answer to that question might depend upon the final results of its future of television consultation.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca .